Opinion
DOCKET NO. A-0122-10T2
01-25-2012
MARIA L. QUIJANO, Plaintiff-Respondent, v. VICTOR M. QUIJANO, Defendant-Appellant.
Celestino A. Labombarda argued the cause for appellant (Richard S. Mazawey, attorney; Mr. Mazawey, on the briefs). Wynn M. Goldstein argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-0939-03.
Celestino A. Labombarda argued the cause for appellant (Richard S. Mazawey, attorney; Mr. Mazawey, on the briefs).
Wynn M. Goldstein argued the cause for respondent. PER CURIAM
In this matrimonial matter, defendant Victor M. Quijano (husband) appeals from the Family Part's July 28, 2010 order enforcing the arbitrator's decision pursuant to the parties' 2004 dual judgment of divorce providing for "binding arbitration" of unresolved financial issues. On appeal, husband argues the court erred in: (l) enforcing an unsigned property settlement agreement (PSA) as he never agreed to its terms; (2) disallowing a plenary hearing as to the existence of a valid and enforceable PSA; and (3) failing to award all appropriate credits he advanced plaintiff, Maria L. Quijano (wife). Wife concedes the court's calculation omitted credits awarded by the arbitrator and should be modified to reflect the correct amount due of $314,010, plus the $7,000 pendente lite counsel fee that has not been appealed. We affirm the order as modified.
The parties were divorced on July 29, 2004. Both parties were represented by counsel. Their children were emancipated at the time. The dual judgment provided, in pertinent part:
IT IS FURTHER ORDERED that the financial and other issues be submitted to binding arbitration to an Arbitrator chosen and agreed to by the parties and the attorneys for the parties . . . and the [parties] shall cooperate with and abide by the interim and final determinations, decisions and judgment of the Arbitrator; and
IT IS FURTHER ORDERED that the Arbitrator shall have the power to adjudicate and enforce disputes and disagreements between the parties which are submitted to the Arbitrator by Motion or otherwise.
IT IS FURTHER ORDERED that the decision of the Arbitrator shall be confirmed by reducing same to an Order of the Court. After entry of the Final Order confirming the decision of the Arbitrator, the Order
shall be subject to the same treatment as a Final Judgment or Final Order of the Court[.] The final decision and
determination of the Arbitrator shall be subject to appeal; and
IT IS FURTHER ORDERED that the Plaintiff and the Defendant shall have the right to make application to this court as a result of the failure of either or both of the parties to comply with the interim and final decisions, determinations and judgments of the Arbitrator[.]
The parties chose Judge Harvey Sorkow, a retired Superior Court judge, as their arbitrator. The parties, represented by counsel, purportedly did not reach an agreement until November 2007, during a meeting in Judge Sorkow's office. Husband purportedly refused to execute the agreement that wife's counsel reduced to writing. On May 28, 2008, the arbitrator issued a written decision stating, in pertinent part:
Talks between counsel in consultation with their respective clients and the arbitrator resulted in an essentially settled case. All issues save the valuation and division of the equity in the former marital home and whether to allow for certain payments remain.
[Wife] questioned the use of the original agreed upon valuations ($400,000) use at this late date - - - 4 years after the divorce judgment was entered. She asked for and received permission to obtain a current valuation at her own expense. She agreed to pay the full cost of the re-appraisal. The new appraisal put a value of $490,000 on the house. There was no contrary opinion submitted by [husband].
The arbitrator accepts that figure as the current value of the house and divides the $90,000 increase in value equally between the parties so that each shall receive $245,000 for their share of the house. [Wife] will execute and deliver a deed and affidavit of title to [husband] in a form acceptable to his attorney.
Issues of the cost of maintenance, insurance, taxes, repairs have been raised by [husband] who seeks to have his wife pay her share of same. The arbitrator finds that [husband] in the ensuing four years has paid the aforementioned expenses but at the same time has collected rent from the apartment in the home. He did not share the rent. Accordingly, [wife] need not pay any of the said expenses and [husband] shall keep the rents received.
The $5,000 paid to [wife] after all of the marital assets were valued regardless of its intended use is found to be an advance on her share of equitable distribution. Accordingly, [husband] is entitled to a credit of $5,000 on the amount to be paid to [wife 1.
[(Emphasis added).]
The arbitrator further stated he was unable to perform a breakdown for equitable distribution of husband's $10,000 personal injury settlement, gave guidance on the components subjected to equitable distribution, and suggested the parties obtain additional information.
The arbitrator's June 4, 2008 letter to counsel clarified that "[b]y reason of the found increased value in the former marital home, [husband] is obliged to pay his former wife an additional $45,000 for her share of the home." His August 13, 2008 letter to counsel stated, in pertinent part:
More than seven (7) business days have elapsed since my letter of July 29, 2008.
Re-reading [husband's counsel's] July 2 letter and [wife's counsel's]
correspondence, I put this matter to rest as follows:
2. [Husband] is entitled to a credit of Ten Thousand ($10,000) Dollars from his accident settlement.
3. As I have said previously, [husband] is not entitled to any reimbursement for realty taxes because he retained all of the rental received from the property.
I do not believe any further issues remain. Accordingly, I am closing my file.
This letter is not contained in our appellate record.
On or about August 17, 2009, wife filed a motion with the Family Part requesting a judgment in the amount of $331,510 as partial equitable distribution. In part, she relied on an unsigned PSA. Husband responded with a certification stating that he never agreed to the PSA and did not sign same. He also inaccurately claimed there was no signed decision by the arbitrator. In particular, husband claimed he never agreed to pay wife under the new appraisal; he only agreed he would "pay her based on a home value of $400,000.00 not $495,000.00." He challenged the appraisal as based on stale comparables (June 2007) and attached an October 30, 2009 one-page market analysis recommending the property be listed for sale in a range of $399,000 to $420,000. Husband also stated he would "like to put the house up for sale," did not have the money to pay wife the $247,500 she was requesting from the house prior to selling it, and would split the proceeds of the sale with wife. He requested a plenary hearing for a judge to decide the financial issues upon which the parties could not agree.
Following oral argument by both parties' counsel, the judge ruled in wife's favor, explaining the divorce judgment referred the financial issues to an arbitrator, who "called it." Although she felt "badly" because "one way or another, [] circumstances [may] change financially," at the end of the day the parties must be bound by the arbitrator's decision in the absence of some other agreement. The judge found Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995), where we mandated a plenary hearing to determine whether there was an agreement as to the property settlement, to be inapplicable because the financial decisions were made by the arbitrator. This appeal ensued.
Contrary to husband's assertion in his brief and at oral argument, the court did not hold the parties' unsigned PSA to be enforceable with respect to the marital home; the only issues husband challenged were those decided by the arbitrator. Our Supreme Court has recognized that "in many cases arbitration of matrimonial disputes may offer an effective alternative method of dispute resolution[,]" particularly involving financial issues. Faherty v. Faherty, 97 N.J. 99, 107 (1984). As the court noted, the divorce judgment provided for the financial issues to be resolved by binding arbitration.
Under the express terms of the divorce judgment, the arbitrator's decision was subject to appeal. However, review of an arbitrator's decision is limited. Manger v. Manger, 417 N.J. Super. 370, 375 (App. Div. 2010). Husband never challenged the award, for example, as "procured by corruption, fraud, or other undue means[,]" questioned the integrity or partiality of the arbitrator, or claimed the arbitrator exceeded his powers. N . J . S . A . 2A:23B-23(a)(1), (2), (4) (enumerating the grounds for vacating an award under the Uniform Arbitration Act). Nor did husband even argue to the trial court that the arbitrator erred in his analysis of the marital home issue. In fact, the arbitrator's written decision clearly reflects that husband had the opportunity to challenge wife's new appraisal and he submitted "no contrary opinion." Husband's after-acquired market analysis and newly-minted request to the trial court to list the property for sale is not a valid defense to the arbitrator's binding decision.
Accordingly, we affirm the July 28, 2010 order, modifying the amount husband is required to pay wife as equitable distribution, excluding the $7,000 counsel fee, from $331,510 to $314,010 ($284,010 + $45,000 for increased value of marital residence - $5,000 advance - $10,000 for husband's accident settlement). In accordance with the arbitrator's decision, upon husband's payment of $245,000 to wife, she shall execute and deliver a deed and affidavit of title to the marital home to husband.
Affirmed as modified.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION